Madras Vanaspathi Ltd vs TAMIL NADU ELECTRICITY BOARD

THIS appeal has been filed against the order dated 11.3.2011 passed by the Tamilnadu State Consumer Disputes Redressal Commission (for short ''the State Commission '') vide which complaint bearing No. CC No. 42/2011 was dismissed in default.

THIS appeal has been filed with a delay of 105 days and an application for condonation of the said delay has been filed. Brief facts of the case are that consumer complaint No. 42/2001 under Section 12 of the Consumer Protection Act, 1986 was filed by the appellant against the respondent/Superintendent Engineer, Tamilnadu Electricity Board, alleging that the present management of the company in question had sought reduction of maximum sanctioned load (demand) because their production levels were increasingly coming down. The maximum load was got reduced first from 1900 KVA to 1000 KVA and then from 1000 KVA to 750 KVA. The company further requested that the maximum load of 750 KVA be further reduced to 600 KVA. The Opposite Party did not accept their requests, saying that the applicant should first make payment of arrears amounting to Rs. 1 l,767.78ps.

THE case of the appellant is that the payment of arrears should not be linked with the reduction in the maximum load. The company again made application for reduction of load from 750 KVA to 450 KVA, but the OP did not take any action to meet the demand. The OP was, therefore, liable to be proceeded against for deficiency in service and unfair trade practice. The appellant demanded that the OP should be directed to reduce the load from 750 KVA to 450 KVA and also to pay Rs. 6,17,500 as compensation to the appellant/complainant.

THE Opposite Party in reply stated that the demand for reduction of load could not be accepted, because as per the terms and conditions of supply of electricity, the outstanding arrears have to be first paid, before acceding to their request; hence, it was not a case for deficiency in service. At the time of hearing before us, the learned Counsel for the appellant was asked to explain the delay of 105 days in filing the present appeal. Learned Counsel stated that it was the duty of the Registry of the State Commission to send free copy of the order to the parties or to their Advocates, but it was not done; hence the party was unaware of the dismissal of the complaint in default. The appellant ''s Advocate on enquiry came to know about the orders in September 2012 and thereafter, he applied for certified copy of the order, which was issued to him on 11.9.2012. He also filed a petition before the State Commission to restore the case, but the same was returned to him saying that it was not maintainable. He requested that in the interest of justice, the delay be condoned. He also stated that before the State Commission, the party had changed their Advocate but the case was listed in the name of the erstwhile Advocate; as such the appellant could not appear on the date of hearing, i.e., 11.3.2011 before the State Commission, as he could not notice the listing of the case.

WE have examined the material placed before us and have given thoughtful consideration to the arguments advanced by the learned Counsel for appellant. Copy of the complaint attached with the file shows that the complaint is dated 3rd July, 2000 and has been listed as OP No. 42/2001. The order of the State Commission dated 11.3.2011 indicates that the case was fixed before the State Commission for appearance of the complainant and for disposal. However, the complainant or his representative was not present before the State Commission on that date and hence, the complaint was ordered to be dismissed in default. It has been stated in the application for condonation of delay filed by the appellant that before the State Commission, the appellant changed their Advocate and the changed vakalatnama was filed before the State Commission on 7.7.2008. On 11.3.2011 the case was listed before the learned State Commission in the name of erstwhile Advocate of the appellant and hence the appellant could not notice the listing of the complaint; hence the State Commission dismissed the complaint in default for non-appearance of complainant or his representative. The Counsel for the appellant, however, could not furnish any satisfactory reply as to why appeal was filed before the National Commission with a delay of 105 days. Even if the version of the appellant that they received the copy of the order on 11.9.2012 and the time taken for obtaining the certified copy of the order of the State Commission was 550 days, even then there was a delay of 105 days in filing the complaint and no reasonable explanation has been given. However, looking at the overall facts of the case it is clear that the complaint was pending before the State Commission for about 10 years and it was dismissed in default for non-appearance on 11.3.2011. In the interest of justice, it may not be appropriate if the case is not examined on merits and the complaint is ordered to be dismissed merely on the ground that the complainant or his representative was not present on the date of hearing.

IN view of these facts, we are inclined to accept this appeal and condone the delay in filing the present appeal subject to depositing Rs. 10,000 as cost in the Legal Aid Fund of this Commission within four weeks. Order dated 11.3.2011 passed by the State Commission is set aside and the case is remanded back to the State Commission to decide the case on merits preferably within a period of 3 months as the case relates to the year 2001. Appellant is directed to appear before the State Commission on 4.4.2013 for further directions. Appeal allowed.